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TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY OF THE ACTION .............................................................4
PARTIES .......................................................................................................................................12
J URISDICTION ............................................................................................................................14
FACTS ...........................................................................................................................................14
I. BACKGROUND ...............................................................................................................14
A. The Basics of Spectrum and Its Allocation by the Government. ...........................15
B. All Wireless Communications Networks Require a Receiver and a
Transmitter; the Transmitter Can Be Either Satellite or Terrestrial. .....................19

C. The FCCs Initial Allocations to Terrestrial Mobile and Satellite Mobile
Systems Have Resulted in a Shortage of Terrestrial Mobile Capacity. .................21
II. DEALINGS BETWEEN THE PARTIES .........................................................................24
A. Harbingers Proposal: A Decade in the Making. ...................................................24
B. Harbinger Proposes To Acquire LightSquared and To Build a Nationwide
Mobile Broadband Network Using LightSquareds Spectrum. .............................27
C. Harbinger and the FCC Negotiate the Terms of the Acquisition. ..........................29
D. The United States Achieved Important Government Policy Goals Through
Its Agreement with Harbinger. ..............................................................................35
E. The United States and Harbinger Reach Final Agreement on the
Negotiated Terms. ..................................................................................................36
F. Harbinger Performs All Its Obligations Under the Agreement with the
United States. .........................................................................................................38
G. The GPS Industry Belatedly Raises Concerns that GPS Receivers,
Operating on LightSquareds Assigned Frequencies, Would Be Unable to
Function if LightSquared Activated Its Mobile Broadband Network Under
Its Agreement with the FCC. .................................................................................39
H. The United States Breaches the Agreement and Deprives Harbinger of Its
Property Interest in LightSquared by Requiring It To Accommodate the
GPS Industrys Improper Use of the LightSquared Spectrum. ..............................48
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COUNT I
(Breach of Contract) ......................................................................................................................51
COUNT II
(Unconstitutional Taking of Private Property Without J ust Compensation) .................................52

COUNT III
(Breach of Implied Covenant of Good Faith and Fair Dealing) ....................................................54

PRAYER FOR RELIEF ................................................................................................................58

















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On March 26, 2010, Plaintiff Harbinger Capital Partners, LLC and its subsidiary and
affiliate funds (collectively Harbinger) entered into a contract with Defendant United States,
acting through the Federal Communications Commission (FCC). After months of detailed
bilateral negotiations, the United States agreed to permit Harbinger to acquire a spectrum
licenseeLightSquared Subsidiary, LLC (LightSquared)through which to build, deploy,
and operate a nationwide mobile broadband network. In exchange, the FCC received
Harbingers commitment to invest billions of dollars to develop that network according to
specifications and conditions demanded by the Government to satisfy its important public policy
objectives. After the United States had formalized its agreement with Harbinger, and after
Harbinger had expended almost $1.9 billion of its own funds performing its obligations
according to the contracts terms, the United States reneged on its contractual commitment.
Instead, the United States permitted the GPS industry to make unlicensed and wrongful use of
the spectrum in which Harbinger had invested and prohibited Harbinger from undertaking further
efforts to develop and deploy the agreed-upon network. Harbinger, therefore, brings this action
under the Tucker Act, 28 U.S.C. 1491, and the Fifth Amendment to the United States
Constitution, seeking recovery of its losses, expected profits, mitigation costs, and all other
appropriate damages and remedies, arising from Defendants breach of contract and/or
unconstitutional taking without just compensation. In support of this Complaint, Harbinger
alleges as follows:
INTRODUCTION AND SUMMARY OF THE ACTION
1. Like electricity a century ago, broadband is a foundation for economic growth,
job creation, global competitiveness and a better way of life. It is enabling entire new industries
and unlocking vast new possibilities for existing ones. It is changing how we educate children,
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deliver health care, manage energy, ensure public safety, engage government, and access,
organize and disseminate knowledge. Federal Communications Commission, Connecting
America: The National Broadband Plan XI (2010) (hereinafter National Broadband Plan).
Mobile wireless internet access is, as the FCC has recognized, the next great challenge and
opportunity for the United States.
2. Mobile broadband operates on electromagnetic spectrum, a small subset of the
vast field of electromagnetic energy all around us. As former FCC Chairman J ulius
Genachowski noted, spectrum is an essential, limited, and highly valuable resource that fuels
mobile telephone, mobile broadband and other parts of the telecommunications industry . . . .
Only a fraction of spectrum, however, is suitable for mobile broadband use, and by 2009 the
portion of that spectrum that the FCC had allocated for commercial use to existing wireless
telecommunications providers was quickly approaching the outer reaches of its capacity. As a
result of the explosive growth in data consumption triggered by wireless devices like smart
phones, tablet computers, and other emerging technologies, the mobile broadband industry faced
a looming crisis. Noting that the explosion in demand for spectrum is putting strain on the
limited supply available for mobile broadband, leading to a spectrum crunch, Chairman
Genachowski warned, the clock is ticking on our mobile future.
3. The FCC recognized in 2010 that [i]f the U.S. does not address this situation
promptly, scarcity of mobile broadband could mean higher prices, poor service quality, an
inability for the U.S. to compete internationally, depressed demand and, ultimately, a drag on
innovation.
4. Equally important, millions of Americans have continued to go without access to
broadband and thus face a profound competitive disadvantage. In some rural states, as much as
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29 percent of the population lacks mobile broadband coverage. Nationwide, nine percent of rural
businesses have no access to mobile broadband.
5. Recognizing these problems, the Government has for more than a decade sought
to expand the capacity and coverage of the Nations mobile broadband spectrum by removing
regulatory barriers to full utilization of the L-band spectrum, which had traditionally been
reserved for Mobile Satellite Service (MSS)that is, direct satellite-to-receiver
communications. Because the L-band was licensed only for MSS uses, it was vastly
underutilized and therefore had untapped potential of carrying enormous amounts of additional
data, which only official FCC action could unleash. Specifically, since 2001, the FCC has
consistently . . . worked to enable terrestrial use of MSS spectrum. For example, in 2005 the
FCC adopted rules permitting MSS licensees to construct and operate an unlimited number of
cellular towers and other terrestrial transmitting stations using the L-band. Pursuant to these
rules, LightSquareds predecessor company, SkyTerra Subsidiary, LLC (SkyTerra), received
in 2005 explicit FCC authorization to develop a nationwide mobile broadband network requiring
deployment of thousands of terrestrial base stations.
6. Likewise, Congress recognized in 2009 that expanding broadband capacity and
coverage is critical to Americas global competitiveness. Accordingly, it directed the FCC to
develop a comprehensive plan for addressing those and other broadband-related concerns.
Following a year-long study, the FCC published in March 2010 a National Broadband Plan. The
Plans ambitious goals included:
Providing at least 100 million homes with affordable access to download speeds
of at least 100 megabits per second.
Creating the fastest and most extensive wireless networks of any nation.
Ensuring every American has affordable access to robust broadband service,
including those in rural and underserved areas.
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Ensuring every community has affordable access to at least one gigabit per second
broadband service to major institutions such as schools, government buildings,
hospitals, and rural health clinics.
Ensuring every first responder has access to a nationwide, wireless, interoperable
broadband public safety network.
7. The FCCs National Broadband Plan explicitly recognized that realizing these
ambitious goals would require enlisting significant amounts of private capital and investment:
Policymakers alone . . . cannot ensure success. Industry, non-profits, and government together
with the American people, must now act and rise to our eras infrastructure challenge.
8. The Government found in Harbinger the private partner it sought. Harbinger had
long owned a partial stake in LightSquareds predecessor company, SkyTerra, which had been
working with the FCC for over a decade to, as the FCC put it, remove regulatory barriers [to
terrestrial broadband service] and align the service rules for the L-band with the rapid evolution
of mobile communications technologies and markets. As a result of that decade-long process,
which involved multiple rulemakings and extensive public comment, SkyTerra had assembled
the spectrum rights necessary to build a nationwide broadband network of thousands of
terrestrial transmitting stations and two state-of-the-art satellites. SkyTerra, however, did not
have access to the billions of dollars, both equity and debt, necessary to build out and operate
such a network, and it therefore could not bring to fruition the Governments plan to ensure that
MSS spectrum would be utilized to its maximum potential.
9. Harbinger did have access to such capital, and in 2008 it proposed to the FCC to
acquire full ownership of SkyTerra and to invest billions of dollars to achieve the FCCs policy
goals. Harbinger agreed to build out, deploy, and operate, in accordance with the FCCs
demanding specifications and conditions, a nationwide, high-speed mobile broadband network
that would serve at least 260 million users. It also agreed to offer broadband service to millions
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of individuals and businesses in underserved, rural areas of the country. The FCC
enthusiastically welcomed Harbingers plan as a unique proposal that had the prospect of
attracting new private investment, increasing competition, bringing additional broadband service
to rural and hard-to-reach regions, and creating thousands of jobs.
10. In March 2010, after months of intensive bilateral negotiations, Harbinger and the
United States, acting through the FCC, entered into a mutually beneficial contract to build and
operate a nationwide high-speed mobile broadband network using SkyTerras spectrum in the L-
band. Harbinger, for its part, agreed to invest billions of dollars to acquire SkyTerra and build
the mobile broadband network according to the rigorous specifications and conditions demanded
by the FCC to meet the Governments public policy objectives. In particular, the FCC insisted,
among other things, that Harbinger construct a terrestrial network to provide coverage to at least
. . . 260 million people in United States by December 31, 2015 and that SkyTerra not make its
spectrum used by its terrestrial network . . . available to . . . the largest or second largest wireless
provider [Verizon and AT&T] without receiving prior Commission approval. In return, the
FCC agreed to provide its authorization for Harbinger to acquire SkyTerra and to build the
agreed-upon mobile broadband network using SkyTerras L-band spectrum. The parties
agreement was memorialized in extensive written instruments, reflecting what the FCC aptly
termed the written version of our handshake deal.
11. In reaching the agreement with Harbinger, the FCC expressly found that
Harbingers plans to provide 4G wireless broadband are a significant public interest benefit,
both because of the competition it will bring in mobile wireless broadband services and because
it will provide mobile wireless broadband service to traditionally underserved areas. And
knowing that SkyTerra lacked the financial and technical resources necessary to develop the
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network, the FCC concluded that these potential public benefits are dependent on Harbingers
acquisition of SkyTerra.
12. In reliance on the Governments agreement to allow construction of the agreed-
upon broadband network using SkyTerras L-band spectrum, Harbinger immediately began to
perform its obligations under the contract. It acquired full ownership of SkyTerra (and renamed
it LightSquared, which is used henceforth to refer to LightSquared and all its predecessor
entities), and caused LightSquared to begin the build out of a nationwide terrestrial network
including up to 36,000 cellular towers, launch a new $1 billion state-of-the-art communications
satellite, enter into contracts with vendors such as Sprint and Nokia Siemens Networks, and
begin securing a nationwide customer base, chiefly of large companies such as Best Buy, in
order to develop an innovative model of wholesale spectrum delivery. To date, Harbinger has
spent almost $1.9 billion in performing its obligations under its contract with the United States.
13. Months after the March 2010 agreement between Harbinger and the United
States, commercial manufacturers of GPS receivers first announced opaquely and in an FCC
proceeding not specific to LightSquared, that three decades of evolving GPS receiver design
had relied on the FCC not allowing extensive terrestrial use of the L-band. The filing also
stated: From the point of view of a GPS receiver, the introduction of an adjacent-frequency
broadband terrestrial service presents a threat of significant harmful interference. GPS devices
are designed to receive signals from government-funded satellites transmitting in the RNSS-
band of spectrum, which is adjacent to the L-band.
14. As would later become apparent, the GPS industrys concern was not that
terrestrial signals transmitted by LightSquared in its L-band spectrum would bleed into the
adjacent RNSS-band and interfere with the ability of GPS devices to receive and use GPS signals
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in the GPS spectrum. In fact, concerns that terrestrial signals in LightSquareds L-band spectrum
would send harmful out-of-band emissions (OOBE) into the RNSS-band had been raised by
the GPS industry in multiple FCC proceedings since 2001, and on each occasion LightSquared
had addressed and resolved them at great expense to itself, often making concessions beyond
what was legally required in order to move the deployment process along. Rather, the concern
belatedly raised by the GPS industry was that LightSquareds terrestrial signals in its own
spectrum in the L-band would interfere with the ability of GPS devices to receive and use GPS
signals crossing into LightSquareds spectrum in the L-band.
15. As the GPS industry later acknowledged, millions of GPS devices had been
deliberately designed to receive and use GPS signals not only in the RNSS-band but also in
LightSquareds spectrum in the adjacent L-band. The GPS industry was therefore, as the FCC
describes it, treat[ing] the GPS spectrum and the L-band as one band, and trespassing onto
LightSquareds spectrum to make continuous wrongful and unauthorized commercial use of it.
The GPS industry complained that if LightSquared was allowed to transmit terrestrial signals in
its own spectrum, as authorized by the FCC since 2003, GPS devices would experience what
the GPS industry calls receiver overload. Analogizing the adjacent bands of spectrum to the
lanes of a public highway, the Chief of the FCCs International Bureau, Mindel De La Torre,
aptly summarized on August 4, 2011 the GPS industrys position as follows: GPS . . . has not
been staying in its lane. It had been driving in the left lane with impunityremember this is
LightSquareds lanebut now that it looks like the left hand lane might actually have traffic in
it, the GPS community is yelling bloody murder . . . . In a nutshell, the GPS community feels
that they should be able to drive their double-wide trailer down [both] lanes without regard to
LightSquareds longstanding right to be in the left lane.
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16. At no point during Harbingers protracted contract negotiations did the GPS
industry or any component of the federal government raise with the FCC the receiver overload
concern about Harbingers planned and long-authorized terrestrial network. Nor did the GPS
industry raise the issue in prior rulemakings and other proceedings relating to LightSquareds
spectrum in which it had participated.
17. The GPS industrys concern about receiver overload was echoed by
Government users of GPS devices, particularly the Defense Department and the Federal Aviation
Administration. But like the GPS industry, those agencies had not previously raised this concern
about LightSquareds proposed terrestrial network. The FCC responded by requiring Harbinger
to accommodate the GPS industrys unlicensed and wrongful use of LightSquareds L-band
spectrum. As then-Chairman Genachowski put it: LightSquared will not be permitted to
commence commercial operation [in the L-Band] if it would result in harmful interference to
GPS systems, including Department of Defense systems and those operated by federal partners.
The FCCs order was subsequently ratified by Congress, which enacted two statutes codifying
this restriction. In keeping with these statutes, the FCC ordered an indefinite halt to Harbingers
efforts to deploy its nationwide mobile broadband network using LightSquareds spectrum,
which the FCC by agreement had explicitly authorized. As a result of the Governments actions,
LightSquared was forced to declare bankruptcy in May 2012, and Harbinger has lost most of its
approximately $1.9 billion investment, despite having made that investment in specific reliance
on the Governments agreement to permit it to build, deploy, and operate a nationwide
broadband network using LightSquareds spectrum.
18. By requiring Harbinger to accommodate the GPS industrys continued unlawful
occupation and use of LightSquareds L-band spectrum in this manner, the United States
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effectively reallocated LightSquareds spectrum to the GPS industry. In other words, the United
States has taken spectrum from its lawfully authorized and contractually entitled user and has
awarded it to the trespasser. The United States has breached its contractual commitment to
permit Harbinger to build out, deploy, and operate a nationwide high-speed mobile broadband
network using LightSquareds spectrum, and it has taken Harbingers property without just
compensation.
PARTIES
19. Plaintiff Harbinger Capital Partners, LLC is a Delaware limited liability company
with its principal place of business in New York, NY.
20. Plaintiff Harbinger Capital Partners II, LP is a Delaware limited partnership with
its principal place of business in New York, NY.
21. Plaintiff Harbinger Capital Partners Master Fund I, Ltd. is an exempted company
organized under the laws of the Cayman Islands with its principal place of business in New
York, NY.
22. Plaintiff Harbinger Capital Partners Special Situations Fund, LP is a Delaware
limited partnership with its principal place of business in New York, NY.
23. Plaintiff Harbinger Capital Partners Special Situations GP, LLC is a Delaware
limited liability company with its principal place of business in New York, NY.
24. Plaintiff HGW GP, Ltd. is a Cayman Islands exempted company with its principal
place of business in New York, NY.
25. Plaintiff HGW Holding Company, LP is a Cayman Islands exempted company
with its principal place of business in New York, NY.
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26. Plaintiff HGW US GP Corp. is a Delaware corporation with its principal place of
business in New York, NY.
27. Plaintiff HGW US Holding Company, LP is a Delaware limited partnership with
its principal place of business in New York, NY.
28. Plaintiff Credit Distressed Blue Line Master Fund, Ltd. is a Cayman Islands
exempted company with its principal place of business in New York, NY.
29. Plaintiff Global Opportunities Breakaway Ltd. is a Cayman Islands exempted
company with its principal place of business in New York, NY.
30. Plaintiff Harbinger Capital Partners SP, Inc. is a Delaware corporation with its
principal place of business in New York, NY.
31. Plaintiff Blue Line DZM Corp. is a Delaware corporation with its principal place
of business in New York, NY.
32. All of the Plaintiffs are affiliates of Harbinger Capital Partners, LLC.
33. The Defendant is the United States of America. The actions most relevant to this
lawsuit were taken by the United States Congress, the FCC, and the National
Telecommunication and Information Administration (NTIA). The FCC is an agency of the
Executive Branch of the Government of the United States. The FCC regulates interstate and
international communications by radio, television, wire, satellite and cable throughout the United
States. The FCCs principal place of business is located at 445 12th Street, S.W., Washington,
D.C. 20554. The NTIA is a bureau of the Department of Commerce that serves as the Executive
Branchs principal advisory office on domestic and international telecommunications and
information policies. NTIAs principal place of business is located at 1401 Constitution Avenue,
N.W., Washington, D.C. 20230.
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JURISDICTION
34. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.
1491(a)(1) because it arises from an express or implied contract with the United States and/or
under the United States Constitution.
FACTS
I. BACKGROUND
35. Wireless broadband is poised to become a key platform for innovation in the
United States over the next decade, as the FCCs 2010 National Broadband Plan observed. The
FCC recognized the potential of wireless services to reach underserved areas and to provide an
alternative to wireline broadband providers in other areas.
36. The FCC also admitted that its earlier spectrum-allocation policies had
contributed to the spectrum scarcity crisis. The FCCs historical approach to allocating
spectrum . . . on a band-by-band, service-by-service basis . . . has been criticized for being ad
hoc, overly prescriptive and unresponsive to changing market needs. It therefore concluded that
its primary tool for promoting broadband competition should be freeing up spectrum, and it
committed to making more spectrum available on a flexible basis going forward.
37. The White House likewise supports opening up additional spectrum. In J une
2010, President Obama signed a Presidential Memorandum to commit the Federal government
to a sustained effort to make available 500 MHz of Federal and commercial spectrum over the
next 10 years to foster investment, economic growth and help create hundreds of thousands of
jobs by meeting the burgeoning demand for mobile and fixed broadband, other high-value uses
and benefits for other industries.


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A. The Basics of Spectrum and Its Allocation by the Government.
38. The FCC defines spectrum as the range of electromagnetic radio frequencies
used to transmit sound, data, and video across the country. It is what carries voice between cell
phones, television shows from broadcasters to your TV, and online information from one
computer to the next, wirelessly.
39. This energy occurs in a broad range of frequencies measured by a unit known as
the hertz (abbreviated Hz). A hertz is one cycle of oscillation per second. KiloHertz (kHz)
means 1,000 Hertz. MegaHertz (MHz) means 1000 kHz, and gigaHertz (GHz) means 1,000
MHz.
40. Not every portion of the spectrum is suitable for every use. The portion suitable
for radio and mobile communicationsoften referred to as the radio waves or radio
spectrumis located between approximately 8.3kHz and 275GHz. The following graphic
demonstrates how radio waves comprise only a small portion of all electromagnetic spectrum.

41. While the radio wave spectrum is not large, there is an abundance of uses for it.
Because of the resultant scarcity and the ubiquity of electromagnetic waves, governments have
had to cooperate to manage the use of spectrum. Internationally, the United States cooperates
with other governments through the International Telecommunication Union (ITU).
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42. Within the United States, the FCC and the NTIA share responsibility for
managing the spectrum. The Communications Act of 1934 confers on the FCC the authority to
allocate electromagnetic spectrum to different kinds of wireless communications services (e.g.,
television and radio broadcasts, mobile telephone and/or data communications) within the United
States and by coordinating with other countries through the ITU. The FCC allocates available
spectrum to specific wireless services and then also assigns spectrum within those allocations to
specific commercial users and to state and local governments. The NTIA manages spectrum
assigned to agencies of the federal government, such as the Department of Defense.
43. The FCC allocates and assigns spectrum in sections of contiguous hertz that are
typically referred to as bands. The use of the term band to describe a range of spectrum
allocated to a specific use leads to such terms as bandwidth and broadband. Bandwidth
refers to the width of the frequency range in a specified band. A greater bandwidth signifies a
greater capacity to transmit information. Broadband refers to a wide or broad allocation of
spectrum, which is thus capable of carrying a comparatively large amount of information.
44. By way of illustration, the FCC has allocated the frequency band between 540-
1600 kHz for the broadcast of AM radio, which is used by numerous independent operators, on
slightly more than a single megahertz of spectrum. The FCC has allocated the frequency band of
88.1 MHz-108.1 MHz for the broadcast of FM radio. The following band graph shows how
these AM and FM radio spectrum bands are abutted by separate bands allocated for use by short
wave radio operators and broadcasters of VHF TV channels:
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45. Two adjacent bands of spectrum are relevant to this complaintthe L-band and
the RNSS-band. In the 1980s, the FCC allocated the L-band to MSS usage, which was
initially restricted to direct signals between satellite transmitters and receivers on the ground,
without the assistance of any land-based, or terrestrial, transmitters such as cellular phone
towers. The bulk of the frequencies in the L-band are now assigned in the United States to
LightSquared, which was acquired, as previously noted, by Harbinger in March 2010 as result of,
and in reliance on, the agreement between Harbinger and the United States that is the subject of
this Complaint.
46. The frequency assigned to MSS uses is contained in two separated blocks: 1525
MHz to 1559 MHz and 1610 MHz to 1660.5 MHz. Portions of this spectrumincluding 1610
MHz to 1626.5 MHz and a few other small slivers of spectrumare assigned to MSS uses that
are not relevant to this litigation. However, the remainder of the MSS spectrummost of 1525
MHz to 1559 MHz and most of 1626.5 MHz to 1660.5 MHzis the L-band spectrum assigned
to what the FCC referred to as Harbingers network (LightSquared Spectrum). Users of L-
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band spectrum must coordinate with other authorized users of L-band spectrum. One such
company, Inmarsat, is discussed in further detail below. Otherwise, these additional entities will
be ignored as they are not relevant to the facts of this complaint.
47. In between the two halves of the LightSquared Spectrum is the allocation to the
RNSS-band, which stands for Radionavigation Satellite Service. The RNSS-band is assigned
to the GPS satellite system (GPS Spectrum). This spectrum is used by Government-owned
and -operated satellites that transmit signals directly to GPS receivers. GPS receivers range from
simple handheld navigation devices to high-precision GPS devices used in airplanes and military
weapons.
48. The relevant points of this complicated allocation and assignment scheme can be
simplified by the following graphical illustration:




49. This illustration is not a complete depiction of all entities operating within the L-
band and the RNSS-band. The illustration simply shows the main facts regarding the proximity
of the LightSquared Spectrum and the GPS Spectrum and it will be referred to throughout the
remainder of the Complaint to explain spectrum issues.





LightSquared Spectrum


GPS Spectrum
Spectrum
assigned to
unrelated MSS

LightSquared Spectrum
1660.5 MHz 1525 MHz 1559 MHz 1610 MHz 1626.5 MHz
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B. All Wireless Communications Networks Require a Receiver and a
Transmitter; the Transmitter Can Be Either Satellite or Terrestrial.

50. Each signal sent over electromagnetic spectrum goes from a transmitter to a
receiver.
51. The transmitter transmits or sends the electromagnetic signal. The transmitter
can be physically located on a space-based satellite or on the ground. In the latter case, it is
called land-based or terrestrial. The receiver receives, or listens to, the electromagnetic
signal sent by the transmitter. For example, a cell phone tower is both a terrestrial transmitter
and a receiver (or transceiver) since it both sends and receives signals from the phones with
which it communicates. A GPS navigation device only receives signals from satellites and does
not send any signal (though it may be incorporated into another device, such as a smart phone,
that transmits signals and performs other functions) and is therefore solely a receiver.
52. Transmitters can be designed to transmit their primary electromagnetic signal
only within the assigned band of spectrum. It is impossible, however, to prevent the remnants, or
harmonics of a signal from bleeding into adjacent bands; although the power of the signal
degrades from its peak at its assigned frequency, it never reduces to zero no matter how far it
moves outside the designated frequency. Thus, the signal transmitted by each spectrum user is
inevitably emitted into adjacent bands, and such OOBE must be managed effectively to prevent
them from causing harmful interference with reception of signals transmitted in adjacent bands.
53. Likewise, a device designed to receive wireless signals, such as a mobile
telephone or a GPS navigation device, can be designed (often with filters) to receive signals
only in its assigned band of spectrum. A device that can receive signals outside of its assigned
band of spectrumfor example, a GPS device receiving GPS or other signals not only in the
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assigned RNSS-band but also in the adjacent L-bandis at risk of receiver overload, which
could render the device inoperable.
54. The GPS industry does not pay anything for the signals its receivers use. Instead,
GPS receivers manufactured by the GPS industry receive their signals from satellites launched
and funded by the federal government. These receivers range from simple-hand-held devices
used by individuals to sophisticated devices installed in airplanes, oceangoing ships, high-
precision equipment, and military weapons. The performance needs and the costs vary widely
among these receivers, which therefore have many dozens, if not hundreds, of different
configurations, as they are embedded in a wide range of and operations systems, all of which
keep changing as technology progresses.
55. The FCC creates and enforces rules to prevent harmful interference from OOBE.
Interference issues, both within and between bands, can also be resolved (and often are) by
agreements between spectrum licensees. Commercial transmitters and transceivers (insofar as
they transmit) therefore must be approved by the FCC. This requires full disclosure of
operational parameters. Devices that act solely as receivers, however, are not subject to such
FCC regulation or approval (other than incidental disclosures required for equipment
certification). The same is true for the receiving component found in a transceiver. Indeed,
manufacturers of GPS receivers are not required to disclose the operational parameters of their
products, even to the FCC.
56. Because the operational parameters of receivers like GPS devices are typically
kept proprietary and confidential, as the law allows, it is incumbent upon receiver manufacturers
to determine whether there could be interference issues between their receivers and a given
transmitter. And manufacturers of receivers must either design their devices (often with filters)
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not to listen in to signals transmitted outside of their assigned band, or else accept the risk that
the performance of their devices will be compromised by receiver overload. The FCCs
regulations codified this long-established understanding at 47 C.F.R. 15, and Harbinger relied on
the existing regulatory framework in entering into the contract.
57. In the case of the Harbinger broadband network, the transmitter is either one of
thousands of terrestrial stations (36,000 were planned and approved) or one of LightSquareds
satellites (the SkyTerra 1 satellite was launched in 2010 after receiving nearly a billion dollars of
funding from Harbinger).
C. The FCCs Initial Allocations to Terrestrial Mobile and Satellite Mobile
Systems Have Resulted in a Shortage of Terrestrial Mobile Capacity.
58. Before modern mobile consumer devices (e.g., cell phones, iPads) were invented,
the FCC allocated spectrum in a way that in future years made it difficult to build sufficient
mobile communications capacity. These severe capacity constraints allowed two wireless
broadband companies, AT&T and Verizon, to achieve market dominance. This global spectrum
allocation problem stems from a combination of two subsidiary problems.
59. First, the FCCs original allocation of L-band spectrum to MSS uses precluded
any terrestrial transmissions within this band. In contrast, when the FCC made its original
allocation of spectrum for cell phone service, the bulk of which was acquired by AT&T and
Verizon, it specifically allowed the transmission of signals from terrestrial transmitters (such as
cell towers).
60. Second, when the FCC made its original assignments within the L-band, it did not
grant individual licensees their own distinct blocks of spectrum. Instead, the FCC gave all users
within the band the right to use MSS spectrum in common, leaving individual operators the task
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of cooperatively resolving any interference issues caused by their common use (often called
coordination).
61. LightSquared was one of the companies licensed to operate in the L-band.
Licensed in 1989, LightSquared began operations in the 1990s. Its business was constructing
and operating satellite communications networks.
62. The FCC also licensed Inmarsat to operate in the MSS spectrum. Inmarsat was
also in the business of mobile satellite communications and a competitor of LightSquared. As
noted above, others were also allowed to operate in the L-band spectrum in common with
Inmarsat and LightSquared but for present purposes they need not be discussed. A simplified
graphic summary of the spectrum allocation described thus far follows:






63. This arrangement meant that MSS operators using the L-band not only had to
adjust their signal transmissions to avoid out-of-band interference with their spectrum
neighbor (GPS) using the RNSS-band but also had to adjust their transmissions to avoid in-
band interference with each other. This second constraint further reduced the signal carrying
capacity of the MSS spectrum substantially.
64. This allocation of spectrum caused no problems when it was first implemented in
the 1980s, when the main uses involved only sending simple signals from satellites. But as



GPS Spectrum


Spectrum
assigned to
unrelated
MSS

Shared
spectrum
commonly
assigned to
LightSquared
Shared
spectrum
commonly
assigned to
Inmarsat

Shared
spectrum
commonly
assigned to
LightSquared
Shared
commonly
assigned to
Inmarsat

1525 MHz 1559 MHz
1610 MHz 1626.5 MHz
1660.5 MHz
23

technology advanced, those initial restrictions caused major inefficiencies as modern mobile
communications devices demanded vastly more bandwidth (for emails, movies, music, pictures,
etc.) than had been anticipated a generation before. Smart phones, tablets, and mobile-enabled
laptops consume, respectively, 49, 127, and 227 times the data consumed by a basic standard-
feature cell phone and need correspondingly greater bandwidth.
65. Today, the United States is experiencing what the FCC has described as a
spectrum crunch. Due to the explosion of Internet-enabled mobile-computing devices (such as
smartphones and tablet computers), wireless networks in North America have been projected to
experience a nearly eight-fold increase in data usage from 2013 to 2018. Current providers
simply do not have sufficient usable spectrum to keep pace with the rapid demand for mobile
broadband when bound by the initial 1980s constraints. Recent announcements by incumbent
wireless carriers make clear that consumers will be forced to pay higher prices given the artificial
scarcity created by the older FCC rules. As one financial reporter has noted, [a]s mobile data
usage increases and carriers run out of spectrum to cram data into, they are raising rates and
limiting usage on their networks.
66. The structure of the Nations existing wireless communications networks is
plagued by three major problems:
First, not enough of the nations spectrum has been allocated for terrestrial-based
mobile communications networks, and the necessity for FCC approval has created
a physical barrier to entry for new competitors, which predictably thwarts
competition in an important new sector of the American economy. As the FCCs
National Broadband Plan acknowledges, [b]oth mobile network performance and
the availability of mobile broadband rely on the availability of spectrum. Carriers
and other broadband-related companies agree that more spectrum will be needed
to maintain robust, high-performing wireless broadband networks in the near
future. The National Broadband Plan therefore recommends that [t]he federal
government . . . should make more spectrum available . . . .
24

Second, the major carriers that dominate the spectrum authorized for terrestrial
use have concentrated their capacity in major population centers. According to
the National Broadband Plan most areas without mobile broadband coverage are
in rural or remote areas. Indeed, the National Broadband Plan reports that in
some rural states, as much as 29 percent of the population lacks mobile broadband
coverage and that, nationwide, nine percent of rural businesses have no access to
mobile broadband. Rural areas have been left out for simple economic reasons:
terrestrial transmitting stations are very expensive to install and are only capable
of broadcasting over a relatively small geographic area. For this reason, AT&T
and Verizon had every incentive to build out terrestrial broadband networks in
densely populated urban and suburban areas. Their initial costs of build-out may
have been high, but in areas with a large customer base there was an opportunity
for substantial sales to justify the initial investment. In contrast, the high build-
out costs and low density of population meant that these same carriers had little
incentive to service rural America. As the FCC has recognized, [t]hese areas of
extremely low population density are some of the most difficult and expensive
areas to serve.

Third, the major carriers have taken a walled garden approach to the use of their
allocated spectrum. If a consumer wanted to use AT&Ts spectrum, for example,
she had to purchase her phone from AT&T. No outside devices were allowed.
Verizon limited access to its spectrum in a similar manner. This walled garden
dulled the incentive for innovation and price competition in the creation of new
mobile devices. AT&T and Verizon had little incentive to create devices or push
down prices because they would only be competing with themselves. Similarly,
outside manufacturers had little incentive to create new devices when they knew
those devices would have no marketeven if they were better or cheaperso
long as AT&T and Verizon refused to open the gates.
67. As of 2010, more than 30 percent of American households lacked broadband
access, making the United States only 14th worldwide in broadband coverage. As then-FCC
Chairman Genachowski summarized the situation: The costs of this broadband gap are
measured in jobs not created, existing job openings not filled, and our nations competitiveness
not advanced.
II. DEALINGS BETWEEN THE PARTIES
A. Harbingers Proposal: A Decade in the Making.
68. On March 26, 2010, the FCC approved Harbingers acquisition of SkyTerra
Subsidiary, LLC, which became LightSquared following a name change on J uly 20, 2010.
25

The FCC approved this acquisition pursuant to a painstakingly negotiated contractual agreement
between Harbinger and the United States. Indeed, Harbingers acquisition of LightSquared was
the culmination of a ten-year process in which the Government sought to expand the capacity
and coverage of mobile broadband spectrum by enabling terrestrial use in the L-band.
69. In 1995, LightSquared was licensed to provide MSS communications services
over spectrum in the L-band. As described above, unlike spectrum used by existing wireless
providers like AT&T and Verizon, which are straining their capacity limits, the L-band spectrum
has been vastly underutilized. Because direct satellite-to-phone communications are not
conducive to hosting large-scale mobile broadband communications, substantial demand for
them has not materialized. Three particular limitations loom large in this regard: First, satellite
coverage typically is spotty in densely populated, heavily developed urban areas where most of
the demand for mobile broadband communications exists. Second, latency, or the time it takes a
signal to travel from a transmitter to a receiver in a network, is much higher for satellites than for
terrestrial services and may potentially result in users of satellite-only services experiencing
noticeable pauses or lags in their communications. Third, the amount of traffic that a satellite,
standing alone, can handle is limited to the equivalent of about 20,000 phone calls at a time.
Correspondingly, to develop and launch satellite technology is enormously expensive, and few
companies have been willing to invest the necessary capital given the limited prospects for
tapping consumer demand. As a result, the L-band has been underutilized and was destined to
remainabsent a robust, terrestrial network to enhance satellite capabilitiesaltogether
incapable of carrying the huge amounts of additional data transmission capacity required to meet
the Governments public policy goals and market demand.
26

70. In 2001, LightSquared submitted a proposal to the FCC for realizing the potential
of its underutilized spectrum. This proposal would allow MSS licensees to provide service in
locations where satellite coverage was difficult, such as urban areas, by adding an Ancillary
Terrestrial Component (ATC), which is comprised of a network of ground-based cellular
towers that communicate freely with mobile devices.
71. In 2003, the FCC approved rules that allowed MSS licensees to offer ATC
services. The FCCs 2003 rules limited both the quantity and power of cellular towers that could
be built, effectively precluding MSS operators from building a nationwide mobile broadband
network that could compete effectively with existing networks. Later that year, LightSquared
requested approval to offer an integrated satellite-terrestrial serviceconsistent with the FCCs
limitations.
72. In 2004, the FCC approved LightSquareds request to operate an integrated
network comprised of both satellite and terrestrial components on its spectrum in the L-band.
73. In 2005, the FCC revised its 2003 rules to remove limitations on the number of
terrestrial towers in ATC networks and to increase the permissible power levels for signals from
such towers. As Chairman Genachowski has recognized, the FCC authorized LightSquared to
provide expansive ancillary terrestrial service, including deployment of thousands of terrestrial
base stations. In so doing, the FCC authorized LightSquared to create a national mobile
broadband (4G LTE) network that could compete directly with Verizon and AT&T by utilizing
its altogether different, far less congested, L-band spectrum. Neither NTIA, the Department of
Defense, nor any other federal agency objected.
27

B. Harbinger Proposes To Acquire LightSquared and To Build a Nationwide
Mobile Broadband Network Using LightSquareds Spectrum.
74. Although LightSquareds spectrum rights were clearly an immensely valuable
long-term asset, by 2008 its ability to capitalize on those rights was severely compromised by a
combination of challenges: the global credit crisis, the significant downturn in the American
economy, and the reluctance of potential investors to commit to a new national mobile
broadband network opportunity that would require a large up-front capital infusion.
LightSquared had been pursuing a major strategic partner for a considerable period of time, but
was unsuccessful. It needed a multibillion dollar infusion of capital to continue developing its
nationwide broadband network. What is more, LightSquareds financial advisor predicted that it
would have a funding gap in October 2010 and that closing that funding gap would be difficult
because there was no clear buyer for [LightSquared] at valuations in excess of [LightSquareds]
then current $1.3 billion in debt.
75. The Government knew that LightSquareds nationwide mobile broadband
network was doomed unless a private investor such as Harbinger was willing and able to provide
the necessary capital infusion. The National Broadband Plan acknowledged that no new entrant
had been able to establish the partnerships with wireless providers or other well-capitalized
potential entrants needed to sustain the substantial costs and obligations entailed in
developing such a network. Indeed, another MSS operator, ICO, filed for bankruptcy in 2009.
76. The Government also knew that its core policy priorities and goals could not be
realized unless an entrant such as Harbinger could be enticed to invest the billions of dollars
necessary to develop underutilized spectrum. Absent such a new entrant, mobile broadband
capacity and coverage would not expand commensurate with Americas vital needs, and
competition among mobile broadband service providers would continue to be limited to the two
28

dominant carriers, leaving rural America underserved and at a competitive disadvantage relative
to urban populations that enjoy higher-quality broadband coverage. Thus, the Government
welcomed Harbingers plan as a unique proposal that had the prospect of attracting new private
investment, increasing competition, bringing additional broadband service to rural and hard-to-
reach regions, and creating thousands of jobs.
77. Harbinger, for its part, recognized that LightSquareds underutilized spectrum
afforded an opportunity to develop a profitable nationwide mobile broadband network from
which Harbinger might derive a handsome return on its investments. Harbinger contemplated
pooling LightSquareds spectrum with that of other L-band licensees and building thousands of
cellular towers to support its network. Harbinger planned, unlike AT&T and Verizon, to sell on
a wholesale basis to retailers, wireless operators, traditional wire-line carriers, cable operators,
device manufacturers, and others. This business plan would allow dozens, even hundreds, of
companies to enter the wireless communications market. New electronics manufacturers could
develop new phones and other wireless devices to compete with those offered by AT&T and
Verizon. New or established retailers could sell wireless products directly to consumers who
would then have an alternative to the established carriers when selecting a broadband service
provider. Harbingers new network would also include two new, state-of-the-art satellites that
would be available to service all customers and would be particularly focused on providing
reliable broadband service to rural populations and first responders.
78. In August 2008, Harbinger, which had long owned a substantial stake in
LightSquared applied for authority to transfer control of [LightSquared] and its respective
licenses and authorizations, from the current shareholders of [LightSquared] to Harbinger. In
March 2009, Harbinger and LightSquared requested that the application be processed separately
29

from another Harbinger co-pending application seeking control of Inmarsat, another MSS
licensee authorized to operate on the L-band.
79. Approximately one month later, in furtherance of its goal of developing a
nationwide mobile broadband network, LightSquared applied to the FCC for a modification of its
ATC authority. This modification would enable operation within the L-band pursuant to a
groundbreaking cooperation agreement reached between LightSquared and Inmarsat in
December 2007. The cooperation agreement required LightSquared and Inmarsat to coordinate
their L-band spectrum into contiguous blocks in a manner that would create enough signal
carrying capacity to support Harbingers planned nationwide mobile broadband network.
80. LightSquared sought this modification of its ATC authority because certain
operating parameters under the cooperating agreement, including increased transmission power
levels of the networks terrestrial transmitters, required FCC approval.
C. Harbinger and the FCC Negotiate the Terms of the Acquisition.
81. Throughout the following year, the FCC and Harbinger engaged in extensive,
detailed negotiations over the terms of the parties agreement. Negotiations were conducted not
in public rulemaking proceedings but instead in bilateral discussions that were conducted ex
parte. The FCC recognized that, while Harbinger and LightSquared were both parties to the
application, it was Harbinger that would be required to provide much of the initial capital
necessary to meet the FCCs requirements. Harbinger became the sole party with whom the
FCC negotiateda protocol acknowledged and, indeed desired, by the FCC. For example, in a
February 2010 email to Harbingers outside counsel, the FCCs General Counsel asked, Can we
continue to work on the basis that [LightSquared], as the only other party to the application, has
declined the opportunity to participate in this discussion? For its part, Harbingers attorneys
30

made clear to the FCC that any terms being negotiated with respect to the transfer of control had
to be approved by Harbinger.
82. The FCC insisted upon Harbingers agreement to a series of specifications and
conditions aimed at promoting the Governments public policy goals. These overarching policy
goals included the rapid build-out of the new terrestrial networks infrastructure, facilitating
entry of new and smaller carriers into the wireless broadband market, and providing mobile
broadband service to traditionally underserved rural communities. Harbinger, in turn, insisted, as
a condition of its enormous investment, on the Governments agreement that Harbinger, through
LightSquared, would be permitted to operate a viable, nationwide mobile broadband network
using LightSquareds spectrum on terms attractive to consumers such that it could secure a
positive return for its investors. Accordingly, Harbinger conditioned its agreement to build,
deploy, and operate a nationwide mobile broadband network, as specified by the FCC, on the
FCCs corresponding agreement to approve Harbingers acquisition of LightSquared and, either
prior to or concurrently therewith, to grant LightSquareds modification of its ATC authority
allowing LightSquared to operate pursuant to its cooperation agreement with Inmarsat.
83. The terms and conditions that the Government and Harbinger bargained for and
ultimately agreed upon were contained in a Conditions Letter sent by Harbinger to the FCC on
March 26, 2010, which was incorporated by reference in the FCC order granting transfer of
control of LightSquared and its spectrum licenses to Harbinger (Transfer Order). Those
conditions, in pertinent part, were as follows:
Condition 1. [LightSquared] shall not, directly or indirectly, enter into any
agreement to make its spectrum used by its terrestrial network in the 1525-1559
MHz/1626.5-1660.5 MHz band (L-band) available to an entity that, at the time
the agreement is entered into, is the largest or second largest wireless provider
without receiving prior Commission approval. . . .

31

Condition 2. Without regard to satellite service, [LightSquared] shall construct a
terrestrial network to provide coverage to at least 100 million people in the United
States by December 31, 2012; to at least 145 million people in the United States
by December 31, 2013; and to at least 260 million people in the United States by
December 31, 2015. For purposes of this Condition 2, terrestrial network shall
mean the network comprised of . . . [LightSquareds] L-band spectrum used by its
terrestrial network . . . .

Condition 3. [LightSquared] shall not . . . directly or indirectly, provide via its
terrestrial network, to any combination of the largest and second largest wireless
providers (as defined in Condition 1), or any of their respective Affiliates, traffic
accounting for more than 25 percent of total bytes of data carried on its terrestrial
network, without prior Commission approval. . . .

84. These contractual conditions make clear that the Government understood
indeed, insistedthat Harbinger would develop a nationwide network of terrestrial transmitters.
Condition 1, for example, reflects the Governments desire that Harbingers network compete
with AT&T and Verizon, which would have been impossible without extensive use of terrestrial
transmitters providing service over the network. Indeed, the amount of traffic that a satellite,
standing alone, can handle is limited to the equivalent of about 20,000 phone calls at a time.
And Condition 2, by its terms, requires a vast and extensive terrestrial network: [w]ithout
regard to satellite service, Harbinger was to construct a terrestrial network to provide
coverage to at least . . . 260 million people in the United States by December 31, 2015. As the
FCCs Transfer Order emphasized:
[U]sing its terrestrial network, Harbinger proposes to provide service to at least
100 million people in the United States by the end of 2012 with an increase to at
least 260 million people in the United States by the end of 2015. The 4G mobile
voice and data services available through Harbingers broadband network
would enable it to provide a service that complements and enhances competition
in the provision of terrestrial wireless services provided by terrestrial carriers
such as AT&T, Verizon Wireless, Sprint, T-Mobile, Clearwire, and others,
particularly in the area of mobile broadband services.
Likewise, then-FCC Chairman Genachowski explained in May 2011:
It should be no surprise to anyone involved in the LightSquared matter
that the company was planning for some time to deploy a major terrestrial
32

network in the spectrum adjacent to GPS. For example, the March 2010
Commission Order transferring control from SkyTerra to Harbinger . . . explained
that Harbinger planned to construct a hybrid satellite-terrestrial network and noted
that the terrestrial component of that network would cover 90% of the U.S.
As Genachowski emphasized, [t]o achieve such a scale would necessarily require tens of
thousands of towers.
85. The FCC accurately characterized its negotiations with Harbinger regarding the
terms of the agreement as a series of ex parte meetings between the parties. Even apart from the
in-person meetings recorded by the FCC, the parties exchanged numerous emails and
participated in many conferences. A few examples of these negotiations include:
a. On September 22, 2009, Phil Falcone and other Harbinger representatives met
with representatives of the FCC to discuss each partys objectives regarding the
potential transfer of LightSquareds license to Harbinger.
b. On October 6, 2009, Harbinger representatives met with representatives of the
FCC, in particular Paul de Sa, Chief of the FCC Office of Strategic Planning and
Policy Analysis, to go over in-depth the details of Harbingers business plan.
c. On November 5, 2009, Mr. de Sa expressed the FCCs concern to Henry
Goldberg, outside counsel for Harbinger, that Harbinger might flip the spectrum
to the dominant wireless carriers and that the FCC wanted to discuss some
mutually acceptable conditions it could put on the grant of the transfer of
control application.
d. On November 9, 2009, Harbingers attorneys met with numerous representatives
from the FCC. Mr. de Sa was identified as the FCCs single point of contact
regarding the negotiations, and Mr. Goldberg was identified as the same for
Harbinger. During that meeting, the FCC suggested conditions that it sought to
attach to the transfer of control of LightSquareds spectrum. First, the FCC
desired that the conditions include an aggressive build-out schedule ensuring the
prompt delivery of service of mobile broadband to a large majority of Americans.
Second, the FCC sought Harbingers agreement to restrict the companies to which
it would lease spectrum, thereby preventing Verizon and AT&T from further
concentrating their duopoly and promoting greater competition in the market.
e. At the request of the FCC, Harbinger penned the first draft of the conditions being
negotiated, and over the course of the next several months, numerous iterations of
the conditions were exchanged between Harbinger and the FCC as they worked
out the mutually agreeable terms of their deal.
33

f. On November 20, 2009, the FCC sought Harbingers input on the terms of the
build-out schedule that Harbinger would be willing to agree to.
g. In a conference between Mr. Goldberg and Mr. de Sa on J anuary 27, 2010, the
FCC proposed the 25% cap on use of the network by AT&T and Verizon that
ultimately gets included in Condition 3.
h. On J anuary 28, 2010, representatives from Harbinger and the FCC met and
discussed the FCCs proposed conditions, including how to calculate the 25%
capacity limit in Condition 3.
i. On February 10, 2010, Mr. de Sa sent an email to Mr. Goldberg, stating as
promised, here is the written version of our handshake deal (emphasis added).
The email further notes that one remaining non-trivial thing is the framing of the
lease condition in terms of % of traffic not capacity . . . . The email also
discussed the status of LightSquareds application to modify the terms
(specifically as to such matters as location and power levels) enabling the
terrestrial component of its proposed network: i did check on the atc mod
issueIB [International Bureau] is moving it along, and am pretty sure what we
discussed (some language saying all conditions are subject to mod being
approved) will be fine. The email closes with Mr. de Sa expressing hope we
can close this out soon! Throughout February, Harbinger and the FCC continued
to refine the language of the agreement even as the substance remained largely
unchanged.
j. In an email dated February 12, 2010, Mr. de Sa told Mr. Goldberg we need to get
agreed fast otherwise may not happen given internal dynamics (emphasis
added).
k. In an email dated February 15, 2010, Harbingers outside counsel told the FCCs
General Counsel, We agreed that we would use the automatically null and void
language for Condition 2, and would use the same language for Condition 1 on
the theory that the requirements of Condition 1 go hand in hand with the
milestones.
l. In that same email chain, the FCC confirmed with counsel for Harbinger that
LightSquared has declined the opportunity to participate in this discussion,
allowing the FCC to communicate with Harbinger on an ex parte basis.
m. In an email dated February 16, 2010, Mr. de Sa asked Mr. Goldberg: cld u pls
send a sentence or two defining spectrum hosted on [LightSquareds] network
per your edit to condition 2 that we can incorporate into the defns?
n. On February 17, 2010, Mr. de Sa sent to Mr. Goldberg draft conditions on the
basis we discussed, inviting Harbingers counsel to redline proposed changes
and promising that I will get resolved. Harbingers counsel responds with an
objection to a substantive change. My comments in the attached explain all.
34

o. In an email dated February 18, 2010, counsel for Harbinger proposed revised
language regarding Harbingers limitations on leasing spectrum to the nations
two largest wireless providers. That same day, Mr. de Sa responded [w]ill check
looks ok to me.
p. On February 19, 2010, the FCCs General Counsel proposed revisions to
Harbingers proposed language, commenting I believe, if these edits are OK with
you, were done.
q. After Harbinger and the FCC had finalized their negotiations and agreed on the
language to be included in the contract documents, on March 26, 2010 Mr.
Goldberg submitted an Ex Parte letter to the FCCthe Conditions Letter, which
had been preapproved by the FCCcontaining the terms of the agreement as
negotiated and agreed to by both Harbinger and the FCC. The FCC in turn
provided Harbinger with a draft of the order granting its transfer of control
application before the order was filed. Notably, that draft order changed the
agreed-upon conditions by removing the qualification on Condition 3 that it did
not apply to agreements with service providers that later merge with or are
acquired by a Tier 1 wireless provider. Mr. Goldberg immediately objected, and
the FCCs General Counsel agreed to reinstate that qualification in the order.
86. In addition to all of the above, throughout this period the FCC attempted to
coordinate with Harbinger the timing of the order granting Harbingers applications to coincide
with the release of FCCs National Broadband Plan, of which, as noted above, Harbingers
nationwide mobile broadband network was a key component.
87. Throughout the discussions about approving the transfer of control, the
Government and Harbinger repeatedly discussed the necessity, which to Harbinger was a sine
qua non of any agreement, of ensuring that approval of the transfer of control of LightSquared to
Harbinger happen concurrently or immediately following approval of LightSquareds ATC
modification request. For example:
a. When representatives from Harbinger met with the FCC the first week of
December 2009, FCC staff agreed to move the ATC modification application to
the top of the to do list.
b. On December 22, 2009, Sanjiv Ahuja, the future Chairman and CEO of
LightSquared, Mr. Goldberg, and other representatives of Harbinger met with Mr.
de Sa and other FCC staff and emphasized that FCC approval of LightSquareds
ATC modification application was essential to Harbingers business plan.
35

c. On J anuary 21, 2010, Phil Falcone met with numerous individuals at the FCC,
including International Bureau Chief Mindel De La Torre, Deputy Bureau Chief
J ohn Leibovitz, and Mr. de Sa. Mr. Falcone stressed that Harbingers business
plan depended on the FCC approving LightSquareds ATC modification
application and that FCC rules needed to be brought into line with the
coordination agreement between LightSquared and Inmarsat.
88. At all times during the negotiations, the Government knew that Harbinger would
not consummate its acquisition of LightSquared unless it had full and final authorization to build,
deploy, and operate the agreed-upon nationwide mobile broadband network. By late November
2009, Harbinger concluded that the FCC was likely to approve the transfer of control of
LightSquared and its spectrum licenses. Both parties understood that meeting the FCCs
extremely ambitious objectives would require an enormous capital investment by Harbinger. In
order to ensure that it could meet the stringent build-out requirements specified in its agreement
with the Government, Harbinger incurred expenses in preparation for and in reliance upon the
contract and its negotiations with the FCC before the time that the contract was finalized.
D. The United States Achieved Important Government Policy Goals Through
Its Agreement with Harbinger.
89. The FCC negotiated the terms of the Governments agreement with Harbinger to
achieve public policy objectives well transcending its normal regulatory charge in authorizing a
commercial transaction. The FCC, in essence, undertook a public-private partnership with
Harbinger whereby it bargained for the investment of private resources to achieve the
Governments objectives of (i) increasing nationwide mobile broadband capacity, (ii) spurring
competition in the mobile broadband market by facilitating entry of new providers, and (iii)
providing wireless broadband access to previously underserved areas in the United States.
Indeed, in J anuary 2010, the FCC acknowledged that the Government and Harbinger would
become public interest partners once the FCCs approval was completed.
36

90. The Government had a compelling interest in Harbinger acquiring and expanding
LightSquared because it sought to encourage exactly this kind of investment in new technology
and innovative business plans as part of the National Broadband Plan. In order to encourage
Harbingers investment, the FCC asked LightSquared for a list of regulatory actions that would
expedite deployment of a next generation Mobile Satellite Services (MSS) system with an
Ancillary Terrestrial Component (ATC) capable of providing broadband services.
91. As the negotiations between Harbinger and the Government progressed toward a
final, binding agreement, the FCC arranged to coordinate the timing of its approval of
Harbingers acquisition of LightSquared to coincide with its release of the National Broadband
Plan. Indeed, the FCC delayed publication of the National Broadband Plan until March 2010 to
ensure that release of the publication would coincide with approval of Harbingers application.
92. The FCC requested that Harbinger express public support for the National
Broadband Plan and link its investment to the FCCs policies. The FCC, in return, offered to
publicly tout Harbingers investment in LightSquared once the approval was finalized.
E. The United States and Harbinger Reach Final Agreement on the Negotiated
Terms.
93. On March 26, 2010, Harbinger and the United States entered an agreement in
which Harbinger made a series of binding commitments. As required by the United States,
Harbinger agreed not to provide network access to the Nations two largest wireless providers
without the FCCs prior consent, and it agreed to an aggressive build-out schedule that would
provide network coverage to at least 260 million people by December 31, 2015a schedule that
would and did require Harbinger to spend enormous sums. Harbinger insisted, as the United
States quid pro quo, that Harbingers commitments will not be effective unless and until the
37

FCC has granted the requests made by [LightSquared] in the ATC Modification Applications . . .
.
94. For the United States part, the FCC found, as agreed, that Harbingers business
plan was in the public interest and approved Harbingers acquisition of LightSquared (Transfer
Order). The FCC expressly conditioned its approval on Harbinger actually moving forward
with its plan to use [LightSquared] to provide 4G mobile wireless service, and especially on
Harbingers plan to build a terrestrial network using [LightSquareds] ATC authority to facilitate
broadband service to most of the U.S. population.
95. In approving the transfer of control of LightSquared and its spectrum licenses to
Harbinger, the FCC explicitly acknowledged Harbingers key role in accomplishing the
Governments public-policy goals. The FCCs order stated that Harbingers plan to develop a
nationwide mobile broadband network using LightSquareds spectrum represents a significant
public benefit, one that is likely to be achieved only if the transaction is approved.
96. The FCCs Transfer Order further detailed the benefit of the bargain struck with
Harbinger:
We find that Harbingers proposal to construct an integrated
satellite/terrestrial 4G mobile broadband network, if realized, promises the
possibility of providing several public interest benefits. Its network will provide
additional broadband capacity at a time whenas the National Broadband Plan
notedthe nation is increasing its use of such services exponentially. It will help
enhance competition among current mobile wireless providers. Through
Harbingers role as a wholesale provider, it may be a catalyst for market-changing
developments in the use and sale of innovative new mass-market consumer
devices. It will provide mobile wireless broadband service to those areas that are
currently unable to receive it. And it will provide wireless broadband service
during those times, such as natural disasters, when it would otherwise be
unavailable.
97. This Order further found that LightSquared
is highly unlikely to provide this service if Harbinger does not acquire it.
Although [LightSquared] already has plans to launch its next generation satellite,
38

it does not have plans to build out a terrestrial network to the significant extent
that Harbinger is planning. Nor is it apparent that it could obtain the resources to
do so. We therefore conclude that the potential public benefits are dependent on
Harbingers acquisition of [LightSquared].

98. On the same day it approved the transfer of control of LightSquared and its
spectrum licenses to Harbinger, the FCC also approved, as agreed, LightSquareds ATC
modification application. This approval was necessary before the bargained-for conditions in the
Transfer Order became binding on Harbinger.
99. The FCC has broad authority to fulfill its obligations under the Communications
Act. Among the FCCs powers is the ability to enter into contracts. See 47 U.S.C. 154(i).
This power may be delegated to the staff of the FCC. See 47 U.S.C. 155(c).
100. The Transfer Order was signed by the Chiefs of the FCCs International Bureau,
Office of Engineering and Technology, and Wireless Telecommunications Bureau. These
individuals have broad authority within their respective areas of expertise, pursuant to 47 C.F.R.
0.31, 0.51, 0.131, 0.241, 0.261, and 0.331. These broad delegations of authority include the
power to commit the Government to a contractual relationship.
F. Harbinger Performs All Its Obligations Under the Agreement with the
United States.
101. Harbinger acquired LightSquared and its spectrum licenses on March 29, 2010.
Harbinger expended funds to build its network in accordance with the contractual conditions.
102. Harbinger took prompt steps to build out its network consistent with the agreed-
upon specifications and conditions, including causing LightSquared to begin the build out of a
nationwide terrestrial network using up to 36,000 cellular towers, launch a new $1 billion state-
of-the-art telecommunications satellite, enter into contracts with Sprint and Nokia Siemens
Networks, and recruit a large base of potential customers. Indeed, between 2010 and 2012
dozens of partners, retailers, and regional service providers signed agreements to utilize the
39

LightSquared network on a wholesale basis, including Qualcomm International, Inc., ClearTalk
Wireless, and Best Buy. These steps were capital-intensive and would not have proceeded
absent Harbingers agreement with the United States.
103. In reliance on its agreement with the United States, Harbinger invested almost
$1.9 billion in building out its network. Harbingers acquisition of LightSquared prevented
LightSquared from becoming insolvent in the fall of 2010. In September 2010, Credit Suisse
Group AG telecom analyst J onathan Chaplin valued LightSquareds spectrum licenses at $9
billion.
G. The GPS Industry Belatedly Raises Concerns that GPS Receivers, Operating
on LightSquareds Assigned Frequencies, Would Be Unable to Function if
LightSquared Activated Its Mobile Broadband Network Under Its
Agreement with the FCC.

104. As explained above, in March 2010 Harbinger and the United States
consummated their agreement authorizing and requiring Harbinger to build out, deploy, and
operate a nationwide mobile broadband network using LightSquareds spectrum. AT&T and
Verizon, as the dominant, incumbent broadband providers, had challenged the FCCs March
orders on the ground, inter alia, that AT&T and Verizon had not been given an opportunity to
comment on certain aspects of the contractmost notably, the provision that limited their ability
to purchase broadband capacity from Harbinger. But, as then-FCC Chairman Genachowski
emphasized, No one, including the GPS industry, raised any issue during the multi-year
proceeding or immediately following [the March orders] regarding GPS receiver overload
problems . . . , even though, throughout this period, it was clear that LightSquared planned to
deploy a significant terrestrial network in the spectrum adjacent to GPS. Genachowski made
clear that the GPS industry and other interested parties (such as federal users of GPS) were
obligated to raise any interference issues during the transfer proceedings: It is important to note
40

that the GPS industry actively participated in the 2010 transfer proceedings. . . . Those who
manufacture such receivers are best positioned to know of their limitations and specifications
and have a responsibility to notify the Commission of any known problems.
105. In November 2010, LightSquared sought permission to allow its wholesale
customers to use terrestrial-only handsetsa waiver request that was unrelated to the number of
its terrestrial base stations, the power level of those base stations, or any other aspect of operating
a terrestrial network that would increase or causenew potential for interference to GPS devices.
The requested modification was in no way essential for LightSquareds success. The GPS
industry subsequently complained, for the first time, that the planned terrestrial network would
overload GPS receivers that receive signals on LightSquareds frequenciesoutside the GPS
Spectrum. As the FCC has noted, the newly raised out-of-band receptions (OOBR)
concerns were associated with LightSquareds planned terrestrial base stationsbase stations
that LightSquared had been authorized to operate since 2005, at the latestrather than the
mobile handsets at issue in LightSquareds waiver application. And in its 2005 order lifting
limits on the number of ATC base stations that could be used by a terrestrial network operating
in the L-band, the FCC indicated that it had rejected proposals from commenters [sic] to require
that MSS traffic be quantitatively primary or predominant in MSS/ATC systems . . . . The
2005 order had also rejected any requirement that handsets only call through the ATC if the
satellite signal is unavailable or unreliable. As the FCC acknowledged, requiring satellite-first
routing would defeat most of the benefits of authorizing ATC in the first instance.
106. As noted previously, the GPS industrys concern was not that terrestrial signals
transmitted by LightSquared in its L-band spectrum would cause harmful interference from out-
of-band emissions (OOBE)that is, would bleed into the adjacent RNSS-band and interfere
41

with the ability of GPS devices to receive and use GPS signals transmitted in the GPS Spectrum.
Instead, the concern belatedly raised by the GPS industry related to OOBR. Interference from
OOBR results when the receiver of the signal is not limiting its reception to signals in its
assigned band. In other words, OOBR interference arises when one partys receiver listens in
to a signal in another partys spectrum in a neighboring band and the receiver is overloaded by
the authorized signal in that band.
107. Thus, the GPS industrys objection to LightSquareds ATC network was based on
a concern that LightSquareds terrestrial signals in its own spectrum would interfere with the
ability of GPS devices to receive and use GPS signals that bleed from the RNSS band over into
LightSquareds own spectrum in the L-band.
108. As the GPS industry later admitted, GPS devices had been deliberately designed
to receive and use GPS signals not only in the RNSS-band but also in LightSquareds spectrum
in the adjacent L-band. For example, in an August 18, 2011 presentation, Deere & Company
stated that receiver overload had been a problem from the beginning. The reason for the
problem, Deere now admitted, was that its receivers had been deliberately manufactured to
operate on what Deere euphemistically called wideband reception. That is, Deeres GPS
devices were designed to receive and use GPS signals outside the GPS Spectrum in the RNSS-
band and within LightSquareds spectrum in the L-band. Thus, the GPS industry complaints
were directed at LightSquareds terrestrial transmissions in LightSquareds own spectrum, as
authorized by the FCC since 2003, none of which negatively impacted GPS operations
within GPSs assigned frequencies.
109. This receiver overload is not inevitable. It can be avoided by filters and other
technical fixes. Indeed, since at least 1965 the FCC has recognized that receivers can and should
42

be constructed in a manner that does not rely on operations outside their authorized bandwidth
unless those receivers are designed not to be overwhelmed by authorized in-band use. In other
words, the FCC has recognized OOBR as a receiver design problem and allows receivers to
listen into signals in neighboring bands only if they can accept all interference within those
bands that could result from authorized use by the licensees of the neighboring bands. Indeed, in
2005 the FCC explained to another user in close proximity to the LightSquared Spectrum that the
FCC generally do[es] not limit one partys ability to use the spectrum based on another partys
choice regarding receiver susceptibility and indeed relies on other users (like the GPS industry)
to deploy receivers . . . less susceptible to interference from transmissions on nearby
frequencies. Moreover, with respect to GPS in particular, the FCC has emphasized that the
responsibility for protecting services rests not only on new entrants but also on incumbent users
themselves, who must use receivers that reasonably discriminate against reception of signals
outside their allocated spectrum. Noting the extent to which certain legacy GPS receivers pick
up signals far into the neighboring frequency bands, then-FCC Chairman Genachowski
explained that FCC
licensees are expected to operate within their own bands and to manufacture
equipment that filters reception of services operating outside their own bands. If
any one spectrum user could demand that neighboring bands remain vacant to
improve the performance of their systems, then the spectrum would be used
inefficiently and the revenue-raising auction process necessary to offset the
national debt could be undermined, as well as meaningful private investment and
job creation.

110. Bureau Chief De La Torre used a plain-language analogy to explain the GPS
industrys objection, writing the following:
Let me explain the situation in the most elementary and visual way that I
can without a picture. The FCC authorizes various operators to provide service
by using spectrum or radiowaves. In order to make sure that there is no
interference, we assign specific frequencies to particular licensees. In this case,
43

think of it as a three lane highway. The FCC has authorized LightSquareda
satellite system that also has a terrestrial componentto use the left lane. The
middle lane is where GPS is authorized to operate, and the right hand lane is
where another satellite operator (Globalstar) has its services. Notice that I say
that GPS is authorized to operate in the middle lanehowever, it has not been
staying in its lane. It has been driving in the left lane with impunityremember
this is LightSquareds lanebut now that it looks like the left hand lane might
actually have traffic in it, the GPS community is yelling bloody murder (literally).
The GPS community is not worried about LightSquared driving in the GPS
middle lane, but that LightSquared will interfere with the GPS signals that are
leaking into LightSquareds left lane.
The GPS community has been on notice since 2003 that the predecessor to
LightSquared was planning on providing terrestrial service in the left traffic
lanewhich would mean there would be more traffic in the lane. However, the
GPS community continued to build receivers that they knew were susceptible to
interference (remember that they are driving in the wrong lane) because it was
cheaper to do so and they decided to accept the business risk of doing so. In a
nutshell, the GPS community feels that they should be able to drive their double
wide trailer down the middle and left lanes without regard to LightSquareds
longstanding right to be in the left lane.
111. Notably, on information and belief, the GPS industry could have prevented
receiver overload in the vast majority of devices by simply by installing proper filters on GPS
devices in the first instance. Still, the GPS industry seized on the receiver overload issue to
attack the entirety of Harbingers planned and long-authorized mobile broadband network.
112. Despite multiple FCC rulemakings and other proceedings since 2001 relating to
ATC authority of licensees in the L-band, the GPS industry had sat silent about this receiver
overload concern. As the FCC has emphasized:
During the decade preceding the November 2010 waiver request, the GPS
industry had numerous opportunities [] to inform the Commission of the receiver
overload interference issue ultimately raised in 2010.
Despite participating in multiple proceedings, and raising other
interference issues that were ultimately resolved to the GPS industrys
satisfaction, it did not do so.

After recounting the GPS industrys ten-year failure to raise its concerns, J ulius Knapp, the Chief
of the FCCs Office of Engineering and Technology and a 38-year veteran of the FCC, has
44

testified that GPS industrys actions in this instance were unlike any other that I can recall in
my decades at the FCC.
113. Indeed, any issue of GPS receiver overload was implicated and should have been
raised by the GPS industry as early as 2001 when LightSquared first proposed that the FCC
authorize development of an ATC network to enable MSS operators to enhance service coverage
particularly for urban areas where populations are centered. If GPS receiver overload is a
concern, that concern is at its peak in precisely those urban areas where GPS devices and usage
are correspondingly concentrated. Still, the GPS industry never raised the prospect of overload
from LightSquareds long-authorized terrestrial operation within the L-band spectrum. In the
absence of any objection from the GPS industry, the FCC bound the Government contractually
to allow Harbinger to build out and deploy its nationwide mobile broadband network.
114. Even in 2005, when the FCC removed limitations on the numbers of terrestrial
towers in the networks and increased the permissible power levels for terrestrial transmissions,
the GPS industry did not oppose this decision or raise any overload-related concerns. The same
is true with respect to Harbingers 2008 transfer of control application and LightSquareds 2009
ATC modification application.
115. The GPS industry maintained its silence despite the FCCs well-established rules
and practices making receiver manufacturers responsible for the consequences of designing
receivers to receive and use signals in neighboring bands of spectrum. Under Part 15 of the
FCCs rules, 47 C.F.R. 15, GPS receivers are defined as unintentional radiators, making them
subject to Section 15.5, which states that, if receivers receive signals outside their authorized
band, they must do so subject to the conditions that no harmful interference is caused and that
interference must be accepted that may be caused by the operation of an authorized radio station
45

[i.e., a transmitter] . . . . In fact, GPS manufacturers such as Garmin, Deere, and Trimble have
stated in user manuals predating Harbingers contract with the United States that their receivers
compl[y] with Part 15 of the FCC rules and must accept any interference received, including
interference that may cause undesired operation. Moreover, the GPS industry is well aware of
the FCCs well-established practice relying on receiver manufacturers . . . to report potential
interference issues because they are in the best position to understand the parameters and
limitations of their own equipment.
116. Furthermore, in 2008, the Defense Departmentone of the GPS industrys
biggest customersestablished performance standards for GPS receivers that put GPS
manufacturers on notice that they were responsible to use sharp-cutoff filters in their devices to
block reception of transmissions from adjacent bands, including adjacent L-band frequencies
used by LightSquared, to ensure that the devices function properly in the presence of
transmissions in the L-Band. In particular, the Defense Department made clear that the receiver
standards set forth in its GPS Standard Positioning Service Performance Standard (SPS)
comprise Minimum Usage Assumptions that are necessary attributes to achieve the SPS
performance described therein; essentially, GPS performance is conditioned upon . . . [these]
assumptions. Following these standards was made the responsibility of the GPS industry.
117. The ITU has also cautioned GPS manufacturers since 2000 that a more stringent
pre-correlator filter may be needed to protect [GPS] receiver operations from adjacent band RF
emissions. The ITUs statements are consistent with the Defense Departments sharp-cutoff
filter performance specification for GPS receivers.
118. The GPS industrys decade-long silence regarding receiver overload that would
arise from its devices operating outside of their assigned spectrum was, on information and
46

belief, premeditated. The GPS industry at various times had raised different interference
concerns related to LightSquareds authority to operate a nationwide terrestrial network in
LightSquareds spectrum in the L-band, and all such concerns were resolved by LightSquared to
the GPS industrys satisfaction. For example, the GPS industry objected in 2009 to
LightSquareds request that the FCC allow it to use terrestrial transmitters in the L-band,
asserting that LightSquareds ATC network would produce OOBE causing harmful interference
in the GPS Spectrum. But the GPS industry reversed its position when LightSquared agreed to
filter its terrestrial transmissions, at great cost to itself. The practical result of the out-of-band
emissions limits to which LightSquared agreed was that LightSquared had to develop new
transmit filters for its base stations and user devices. Additionally, to meet the out-of-band
emissions limits in its agreement with the GPS industry, LightSquared had to refrain from
conducting terrestrial operations in the 4MHz closest to the GPS Spectrum. By foregoing the
terrestrial use of that 4MHz of spectrum, LightSquared essentially agreed to create a 4-MHz
buffer zone, or guardband, between the lower portion of the LightSquared Spectrum and the
GPS Spectrum. An approximation of the relevant spectrum, including the guardband, is depicted
below:




119. The cost of LightSquareds concession was substantial: the filters alone cost
millions of dollars. And the decision to limit the terrestrial use of a full 4-MHz of spectrum cost

LightSquared
Guardband

LightSquared
Spectrum

GPS Spectrum
Spectrum
assigned to
unrelated MSS

LightSquared Spectrum
1660.5 MHz 1525 MHz 1559 MHz 1610 MHz 1626.5 MHz
47

LightSquared an enormous amounteach MHz of frequency in this portion of the spectrum is
worth hundreds of millions of dollars.
120. Thus, when LightSquared in 2003 requested the FCCs authorization to deploy
more than 1725 terrestrial transmitters in its L-band spectrum, the GPS industry in March 2004
supported the request, urg[ing] the Commission to grant the . . . applications of [LightSquared]
and to do so as soon as possible. Indeed, the GPS industry praised LightSquareds interband
cooperation:
In its applications, and as subsequently amended on February 27, 2004,
[LightSquared] proposes to operate at OOBE levels that are even more stringent
than those set out in its agreement with the Council. We believe that
[LightSquared] is to be commended for its proposal to use its spectrum in a
responsible manner that ensures the continued utility of GPS receivers operating
in the vicinity of [LightSquared] ATC stations.
121. Similarly, in J uly 2009, in connection with the ATC modification request that
formed an essential term of Harbingers agreement with the United States, the GPS industry
raised concerns with the FCC about potential interference to GPS receivers relating to OOBE
from certain small, indoor transmitters (called femtocells). LightSquared worked with the
GPS industry to address these issues. LightSquared voluntarily agreed to restrict the out-of-band
emissions of its femtocells, and in August 2009 the GPS industry filed a letter with the FCC
withdrawing its concerns.
122. Yet during this entire time period, the GPS industry deliberately designed GPS
receivers so that their filters extended into significant portions of the LightSquared spectrum in
the L-band.
123. In other words, the GPS industry has ignored standard practices and has for many
years manufactured GPS receivers capable of receiving GPS signals not only from frequencies in
the RNSS-band (i.e., the only frequencies actually allocated to GPS operations), but also from
48

frequencies outside the GPS Spectrum, including frequencies in the LightSquared Spectrum that
the FCC specifically assigned to LightSquared.
124. Even worse, over the past decade, the GPS industry has flooded the market with
millions of GPS products that it knew suffered from this crippling design flaw. This includes
GPS products designed and manufactured well after the technical parameters of LightSquareds
network were made known to the GPS industry.
H. The United States Breaches the Agreement and Deprives Harbinger of Its
Property Interest in LightSquared by Requiring It To Accommodate the
GPS Industrys Improper Use of the LightSquared Spectrum.

125. After the United States and Harbinger reached their agreement authorizing and
requiring Harbinger to build out, deploy, and operate a nationwide mobile broadband network
using LightSquareds spectrum, LightSquared sought permission in November 2010 to allow its
wholesale customers to use terrestrial-only handsets, as discussed above. Although the FCC
conditionally approved LightSquareds technical waiver application relating to terrestrial-only
handsets in an order on J anuary 26, 2011, it nonetheless halted deployment of Harbingers
nationwide mobile broadband network by requiring LightSquared for the first time to address
and resolve the GPS industrys belatedly raised receiver overload concern to the Commissions
satisfaction before LightSquared commences offering commercial service pursuant to this waiver
on its L-Band . . . frequencies. This process would be deemed complete once the Commission,
after consultation with NTIA, concludes that the harmful interference concerns have been
resolved and sends a letter to LightSquared stating that the process is complete.
126. The FCC took this action even though it recognized that the interference concern
that it required Harbinger to address was entirely associated with LightSquareds planned
terrestrial base stations rather than the mobile handsets at issue in the conditional waiver
49

request. The FCC further acknowledged that these concerns appear to apply to the full
LightSquared ATC service authorized in 2004 and 2010. The FCC fully understood that the
GPS receiver overload problem was, therefore, an inexorable consequence of the very thing the
United States had made a contractual condition in its negotiations with Harbingera national,
mobile broadband network operating using LightSquareds spectrum.
127. Although the FCCs J anuary 26, 2011 order was thus improper when issued, it
was subsequently ratified by Congress. On December 23, 2011, Congress enacted a statute
mandating that [t]he Federal Communications Commission shall not lift the conditions imposed
on commercial terrestrial operations in the Order and Authorization adopted on J anuary 26, 2011
(DA 11-333), or otherwise permit such operations, until the Commission has resolved concerns
of widespread harmful interference by such commercial terrestrial operations to [Global
Positioning System devices of the Department of Defense]. National Defense Authorization
Act for Fiscal Year 2012, Pub. L. 112-81, 911(a)(1); 125 Stat. 1298, 1534. And on December
31, 2011, Congress enacted another law providing that [n]one of the funds made available in
this Act may be used by the Federal Communications Commission to remove the conditions
imposed on commercial terrestrial operations in the Order and Authorization adopted by the
Commission on J anuary 26, 2011 (DA 11-133), or otherwise permit such operations, until the
Commission has resolved concerns of potential widespread harmful interference by such
commercial terrestrial operations to commercially available Global Positioning System devices.
Consolidated Appropriations Act, 2012, Pub. L. 112-74, 628, 125 Stat. 786, 927-28.
128. These statutes eliminated any possibility that a nationwide mobile broadband
network could be deployed and operated using LightSquareds spectrum pursuant to Harbingers
agreement with the United States without accommodating the GPS industrys trespass upon and
50

use of the same spectrum. These statutes thus contravened the terms of the United States
contract with Harbinger and effectively reallocated the L-band spectrum to the GPS industry.
The Government in essence conferred upon the GPS industry an easement or property interest in
the spectrum that Harbinger was contractually entitled to use through its acquisition of
LightSquared.
129. As the chief architect of the FCCs National Broadband Plan, Blair Levin,
lamented, the Government effectively came to the unstated but clear conclusion that the GPS
industry has a primary right to use the spectrum in the band owned by LightSquared. As he
elaborated: Something extraordinary happened last week. Our country reallocated 40 MHz of
commercial spectrum. No Notice of Proposed Rulemaking from the FCC. No notice and
comment period. No economic analysis. Not even a legal decision stating that that is what we
are doing. Thus, Congress reversed, for Harbinger alone, the FCCs longstanding regulation
making clear that receiver manufacturers are obliged either to design their devices not to receive
signals transmitted outside of their assigned band or to accept the risk that the performance of
their devices will be compromised by receiver overload. On February 14, 2012, the NTIA
advised the FCC that
LightSquareds proposed mobile broadband network will impact GPS services
and . . . there is no practical way to mitigate the potential interference at this time.
Furthermore, while GPS equipment developers may be able to mitigate these
issues via new technology in the future, the time and money required for . . . users
to replace technology in the field and the marketplace . . . cannot support the
scheduled deployment of terrestrial services proposed by LightSquared.

The NTIA also concluded that there are no mitigation strategies that both solve the interference
issues and provide LightSquared with an adequate commercial network deployment.
130. The next day, the FCC issued a public notice proposing not only to vacate its
conditional approval of terrestrial-only handsets but also to suspend indefinitely LightSquareds
51

underlying ATC authorization, first granted in 2004. Harbinger was thus prohibited from
developing the very network that the United States explicitly bargained for and Harbinger agreed
to build.
131. As a result of the Governments actions, LightSquared was not able to renew
financing, lost contracting partners, and eventually was rendered unable to continue operating. It
declared bankruptcy in May 2012. Likewise, the Governments breach prevented Harbinger
from mitigating the effects of the breach. Harbinger had acquired control of LightSquared and
its spectrum licenses for the express purpose of developing a nationwide mobile broadband
network operating in LightSquareds spectrum. Harbingers investment was made in specific
reliance on the United States agreement to permit Harbinger to build, deploy, and operate such a
network, as reflected in the Governments contract with Harbinger. The Governments actions
have breached the parties contractual agreement, have deprived Harbinger of the entire value of
its interest in LightSquared, and have destroyed Harbingers reasonable investment-backed
expectations.
COUNT I
(Breach of Contract)

132. Plaintiff repeats and incorporates each and every allegation set forth in paragraphs
1 through 131 as if set forth in full herein.
133. In the course of their negotiations over the transfer of control of LightSquared, the
United States, acting through the FCC, and Harbinger entered into a mutually binding,
contractual relationship with each other. That contract was memorialized in written instruments
dated March 26, 2010.
134. In exchange for its approval of the LightSquared transfer of control and its
commitment to permit the build out, deployment, and operation of Harbingers nationwide
52

mobile broadband network, the United States obtained a public interest partner invested in
achieving the Governments important policy objective of increasing broadband capacity and
coverage across the country and enhancing competition in the mobile broadband market.
135. The United States expressly recognized that Harbingers national wireless
broadband network would profoundly benefit the public and that these benefits could likely be
achieved only through approval of Harbingers investment in LightSquared and deployment of
the agreed-upon mobile broadband network.
136. The United States actions in requiring Harbinger to accommodate the GPS
industrys improper use of the LightSquared spectrum prevented Harbinger from deploying the
agreed-upon mobile broadband network, caused LightSquared to declare bankruptcy, and led to
Harbinger losing its investment in LightSquared.
137. The United States actions breached its contractual obligations to Harbinger,
without any legitimate justification in fact or law.
138. As a consequence of the United States breach, Harbinger has been severely
injured, for which it is entitled to money damages and interest in such an amount as the proof at
trial may warrant. Harbinger is entitled to the greater of expectancy damages (measured as lost
profits plus costs already incurred), reliance damages, and restitution.
COUNT II
(Unconstitutional Taking of Private Property Without J ust Compensation)

139. Plaintiff repeats and incorporates each and every allegation set forth in paragraphs
1 through 138 as if set forth in full herein.
140. Harbinger had reasonable investment-backed expectations based upon the interest
it acquired in LightSquared, coupled with its contractual agreement with the United States for
developing, deploying, and operating a nationwide mobile broadband network, as specified by
53

the FCC, and the FCCs established rules and practices relating to the allocation and utilization
of spectrum.
141. In specific reliance on these reasonable expectations, Harbinger invested almost
$1.9 billion in performing its obligations under the contract. Indeed, Harbinger would not have
acquired full ownership of LightSquared, and it would not have expended vast sums to develop
and deploy a nationwide mobile broadband network, as specified by the FCC, but for the United
States commitment to permit it to do so and but for the FCCs longstanding rules on receiver
overload issues.
142. By requiring Harbinger to accommodate the GPS industrys trespass upon and use
of the LightSquared spectrum, the United States effectively conferred upon the GPS Industry an
easement or other property interest in this spectrum, which Harbinger was entitled to use based
upon its acquisition of LightSquared.
143. The Governments actions required Harbinger alone to bear public burdens that,
in all fairness and justice, should be borne by the public as a whole.
144. The Governments actions deprived Harbinger of its reasonable, investment-
backed property interests.
145. The Governments actions effectively prevented Harbinger from deploying the
agreed-upon nationwide mobile broadband network, caused LightSquared to declare bankruptcy,
and led Harbinger to lose its investment in LightSquared, as well as its fair and just returns from
development of the agreed-upon network.
146. The Governments actions constitute a taking for public use within the meaning of
the Fifth Amendment of the United States Constitution, and Harbinger is entitled to just
compensation as required by and interest in such an amount as the proof at trial may warrant.
54

COUNT III
(Breach of Implied Covenant of Good Faith and Fair Dealing)

147. Plaintiff repeats and incorporates each and every allegation set forth in paragraphs
1 through 146 as if set forth in full herein.
148. The FCCs J anuary 26, 2011, order halting Harbingers deployment of the agreed-
upon nationwide mobile broadband network directed LightSquared to organize and participate in
a technical working group in which all interested parties would work directly with LightSquared
to resolve the GPS industrys receiver overload concerns. The working group was co-chaired by
LightSquared and by Charles Trimble, the chairman of the GPS Industry Council, and was
comprised of more than 120 participants, including representatives from the Defense Department
and other federal agencies, the GPS community, and various telecommunications companies.
149. After the working group had performed extensive testing of GPS devices,
Harbinger attempted to resolve the GPS industrys receiver overload problema problem of the
GPS industrys own makingand to mitigate Harbingers damage from potential impairment of
its spectrum rights.
150. First, Harbinger offered to launch its wireless broadband network base stations
using only a portion of the LightSquared Spectrum that is farthest away from the GPS Spectrum.
Extensive testing conducted by the GPS Technical Working Group between February and J une
2011 showed conclusively that LightSquareds base station operations in those frequencies
would have no adverse impact on over 99 percent of GPS devices (including 100 percent of
GPS-enabled mobile phones and general location and navigation devices.).
151. Second, to further minimize potential overload, Harbinger offered to reduce the
power of its terrestrial base station transmissions in the LightSquared Spectrum below the level
the FCC had already authorized.
55

152. Third, Harbinger offered to underwrite a workable technological fix for the
remaining one percent of high-precision GPS receivers that could still experience overload from
LightSquareds operations in the frequencies farthest away from the GPS Spectrum. For
example, Harbinger offered to facilitate the incorporation of new filters and hardware into those
receivers.
153. Harbinger even partnered with J AVAD GNSS, a manufacturer of high-precision
GPS devices, to develop a technological fix. J AVADs founder stated that [t]his interference
problem is not a difficult one to solve, once you decide to solve it.
154. In a matter of weeks, J AVAD developed a simple, effective filter utilizing
commercially available, low-cost components that would resolve the GPS industrys overload
concerns for high-precision receivers.
155. J AVADs solution used existing technology and off-the-shelf materials, and
J AVAD manufactured prototypes to ensure the filter could be produced. J AVAD was prepared
to begin production of the filter as soon as the GPS industry agreed, and the GPS industry could
have begun implementing the filter immediately to resolve its overload concerns.
156. The working group on GPS overload submitted its final report to the FCC on J une
30, 2011. Afterward, the NTIA supervised a second round of testing on the issue of receiver
overload by the Defense Department and other federal agencies.
157. The Governments testing, on information and belief, was systematically designed
and manipulated to skew the results to show that LightSquareds terrestrial signals would cause
harmful receiver interference in the L-band to millions of GPS devices for general and personal
uses. The Governments testing, for example, suffered from at least the following defects:
a. NTIA and the Government agencies performing the testing (hereinafter,
Government agencies) did not establish any protocol for selecting the GPS
56

devices used in the Governments testing. Instead, the Government agencies
exercised little to no oversight over the selection process and permitted GPS
manufacturers and competing cellular providers who were actively opposing
Harbingers ATC network to cherry-pick those devices most likely to suffer
overload.
b. The industry members selected technologically outmoded devices that had been
discontinued over a dozen years earlier and devices that had not been sold for
years.
c. Critical variables, such as antenna orientation and spacing, were also left largely
to the control of the GPS industry.
d. In its analysis of the testing data, NTIA and the Government agencies assumed
the power level of LightSquareds base stations to be substantially higher than
their actual proposed power levels.
e. The standard set by NTIA for determining harmful overload was a loss of one
decibel (1 dB) in a GPS devices signal-to-noise ratio. This standard sets a
threshold far lower than any accepted or established standard on signal
interference. Thus, NTIA and the Government agencies used an unreasonably
stringent standard for identifying harmful overload that is divorced from
established practice. Further, on information and belief, the tests employed a
power level that was 32 times higher than the level proposed by LightSquared for
its terrestrial transmitters.
f. Certain devices were altered prior to testing for the purpose of making them more
susceptible to harmful overload. On at least one device, the filter that ordinarily
prevented the device from receiving emissions outside of the GPS band was
removed. On another device, an encryption key that would have prevented
overload issues if active was similarly disabled.
g. Some of the devices were GPS modules and evaluation kits intended as
components to be inserted in completed devices.
158. On information and belief, certain agencies of the federal government had an
interest in preventing Harbinger from deploying its network of terrestrial transmitters and thus in
magnifying and exaggerating the receiver overload problem. The Defense Department, for
example, was at risk of being required to spend large sums of money to replace or retrofit
thousands of off-the-shelf GPS devices that it had purchased that were not consistent with the
militarys specifications on limiting the reception of signals from outside the GPS Spectrum.
57

159. The NTIA relied heavily on the Interagency National Executive Committee for
Spaced-Based Positioning, Navigation, and Timing (PNT EXCOM) to develop its testing plan.
The advisory board to the PNT EXCOM operated under a significant, conspicuous conflict of
interest.
160. Before the NTIA conducted its round of testing, the PNTs advisory board
publicly opposed deployment of Harbingers mobile broadband network. In a letter to the FCC,
the advisory board recommended that the Commission rescind its conditional wavier [sic] and
not allow a change in the structure of the [L-band spectrum] that abuts GPS to allow
transmissions that interfere with GPS. Thus, the advisory board to the very institution
responsible for developing the Governments testing protocol had publicly committed itself to
not allow[ing] LightSquareds network to operate.
161. The PNT Advisory Boards Vice Chairman, Brad Parkinson, was also a director
of Trimbleone of the major GPS companies publicly opposed to deployment of Harbingers
nationwide mobile broadband network. Parkinson also held investments in Trimble that, on
information and belief, at all relevant times measured in millions of dollars.
162. The Inspector Generals Office of the National Aeronautics and Space
Administration investigated Mr. Parkinsons participation and, in an August 2012 report,
conclude[d] that by signing the August letter to the FCC, Parkinson improperly participated in a
matter affecting Trimbles financial interests, which is imputed to him both because of his
membership on the board of directors and his ownership of more than $25,000 in Trimble stock.
163. After concluding its testing, the NTIA advised the FCC on February 14, 2012,
that
LightSquareds proposed mobile broadband network will impact GPS services
and . . . there is no practical way to mitigate the potential interference at this time.
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Furthermore, while GPS equipment developers may be able to mitigate these
issues via new technology in the future, the time and money required for . . . users
to replace technology in the field and the marketplace . . . cannot support the
scheduled deployment of terrestrial services proposed by LightSquared.

The NTIA also concluded that there are no mitigation strategies that both solve the interference
issues and provide LightSquared with an adequate commercial network deployment.
164. The next day, the FCC issued its public notice proposing to vacate its conditional
approval of terrestrial-only handsets and to suspend indefinitely LightSquareds underlying
ATC authorization, first granted in 2004.
165. The February 15, 2012 public notice entrenching the Governments halt to
Harbingers efforts to deploy the agreed-upon nationwide mobile broadband network was based
on testing of the GPS overload problem conducted by Government agencies with the supervision
of the NTIA.
166. The testing and analysis was designed and manipulated in bad faith to unfairly
exaggerate and maximize findings of GPS receiver overload.
167. By deliberately designing and employing biased testing procedures and standards,
the Government breached the implied covenant of good faith and fair dealing inherent in every
contract.
168. As a consequence of the Governments actions, Harbinger is entitled to recover its
reasonable and entire losses arising from this breach, including, but not limited to, its cost of
performance and subsequent costs incurred as a result of the breach, and is entitled to such other
remedies as the facts and law may warrant.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Harbinger requests the following relief:
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a. entry of a judgment in favor of Harbinger and against Defendant on all of
Harbingers claims;
b. entry of a judgment that Defendant has breached its contract with Harbinger,
taken its property within the meaning of the Fifth Amendment to the United States Constitution,
and breached its implied covenant of good faith and fair dealing;
c. entry of a judgment awarding Harbinger its full and reasonable damages, in an
amount to be proven at trial, for Defendants breach;
e. entry of judgment awarding Harbinger its full and just compensation, in an
amount to be proven at trial, for Defendants unconstitutional taking of Harbingers property;
f. an accounting for damages suffered by Harbinger, including lost profits caused by
the infringing activities, and judgment requiring Defendant to compensate Harbinger for such
damage;
g. an award of any interest, costs, expenses, and attorneys fees to which Harbinger
may be entitled;
h. such other and further relief as the Court may deem just and proper.